Opinion
2016–08590 Index No. 14228/07
02-06-2019
DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Respondent, v. Purcell CONWAY, Appellant, et al., Defendants.
Anthony J. Lopresti, Garden City, N.Y. (Gail M. Blasie of counsel), for appellant. Day Pitney, LLP, New York, N.Y. (Rachel G. Packer of counsel), for respondent.
Anthony J. Lopresti, Garden City, N.Y. (Gail M. Blasie of counsel), for appellant.
Day Pitney, LLP, New York, N.Y. (Rachel G. Packer of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action to foreclose a mortgage against, among others, the defendant Purcell Conway (hereinafter the defendant). A judgment of foreclosure and sale was entered January 18, 2008, upon the defendant's failure to appear or answer the complaint. Thereafter, the plaintiff moved to appoint a successor referee. The defendant cross-moved, inter alia, in effect, pursuant to CPLR 5015(a) to vacate the judgment of foreclosure and sale based on newly-discovered evidence, and thereupon to dismiss the complaint insofar as asserted against him, or, in the alternative, for leave to serve a late answer. In an order entered July 20, 2016, the Supreme Court, inter alia, without a hearing, granted the plaintiff's motion and denied those branches of the defendant's cross motion. The defendant appeals.
We agree with the Supreme Court's denial of those branches of the defendant's cross motion which were to vacate the judgment of foreclosure and sale pursuant to CPLR 5015(a)(2), (3), or in the interests of substantial justice. The defendant failed to demonstrate that the newly discovered evidence would probably have produced a different result (see CPLR 5015[a][2] ; Wall St. Mtge. Bankers, Ltd. v. Rodgers, 148 A.D.3d 1088, 1089, 49 N.Y.S.3d 753 ; IMC Mtge. Co. v. Vetere, 142 A.D.3d 954, 955, 37 N.Y.S.3d 329 ; Federated Conservationists of Westchester County v. County of Westchester, 4 A.D.3d 326, 327, 771 N.Y.S.2d 530 ). While "the party seeking relief must demonstrate that the evidence is material, is not merely cumulative, is not of such a nature as would merely impeach the credibility of an adverse witness and that it would probably change the result previously reached" ( Trimarco v. Data Treasury Corp., 146 A.D.3d 1008, 1010, 46 N.Y.S.3d 640 [internal quotation marks omitted] ), here, the proffered evidence served merely to impeach the process server's credibility. Further, the defendant failed to establish that the plaintiff engaged in any fraud, misrepresentation, or other misconduct warranting vacatur of the judgment based on CPLR 5015(a)(3) (see Bank of N.Y. Mellon Trust Co., N.A. v. Sukhu, 163 A.D.3d 748, 751, 83 N.Y.S.3d 70 ; IMC Mtge. Co. v. Vetere, 142 A.D.3d at 955, 37 N.Y.S.3d 329 ). Moreover, he did not show that the judgment should be vacated in the interests of substantial justice (see 40 BP, LLC v. Katatikarn, 147 A.D.3d 710, 711, 46 N.Y.S.3d 217 ).
The defendant's remaining contentions are without merit.
LEVENTHAL, J.P., MILLER, DUFFY and BRATHWAITE NELSON, JJ., concur.